When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law

Brake, Deborah L., William and Mary Law Review

INTRODUCTION
I. THE TREATMENT OF LEVELING DOWN BY THE COURTS
A. Palmer v. Thompson Revisited: Formal Equality and
Discriminatory Intent
B. Doctrinal Discomfort with Leveling Down
C. Seeds of Constraint
1. The Significance of the Benefit
2. Remedial Principles Favoring Extension of Benefits
3. External Limits Fixing the Level of Treatment
for One Class
4. Leveling Down as a Cover for
Continuing Discrimination
D. Room for Further Development of
Equality-Based Limits
II. A MORE CRITICAL PERSPECTIVE ON LEVELING DOWN
AND EQUALITY
A. Equality as Equal Concern
B. An Expressive Meaning Approach to Leveling Down
III. APPLYING AN EXPRESSIVE MEANING APPROACH
A. Three Examples Where Leveling Down Conflicts with
Equality Law
B. Three Examples Where It May Not
IV. ADVANCING THE DEBATE OVER
EQUALITY'S NORMATIVE VALUE
A. Equality's Critics and the Leveling Down Objection
B. The Treatment of Leveling Down by
Equality's Defenders
C. How Attention to Social Context and
Expressive Meaning Would Enrich the Debate
CONCLUSION

INTRODUCTION

In the canon of equal protection, it is seemingly well-settled that inequality may be remedied either by leveling up and improving the treatment of the disadvantaged class, or by leveling down and bringing the group that is better off down to the level of those worse off. (1) The presumptive permissibility of leveling down is viewed as an inherent feature of equality rights and is not limited to equal protection; it applies in the statutory context as well, so long as not expressly prohibited. (2) The acceptability of leveling down in response to inequality is even invoked to question whether equality has any normative appeal at all, since it may serve as the vehicle for producing an outcome which, by utilitarian standards, may seem inefficient and undesirable. (3) As one of the leading constitutional law texts puts it:

Even if we could give substantive content to the equality
requirement, it is not clear why it has any normative appeal.
Although the demands of the equal protection clause can be
satisfied by extending the contested benefit to a broader group,
the government need not respond in this fashion. It may also
fully satisfy the demand of equality by denying both groups the
contested benefit. (4)

Utility aside, the leveling down problem casts doubt on whether conventional equality jurisprudence serves the interests of those whom it supposedly protects. (5) The permissibility of leveling down confronts persons disadvantaged by inequality with a double bind: challenge the inequality and risk worsening the situation for others instead of improving one's own situation, or continue to endure unlawful discrimination. (6) This Article argues that there is a way out of this double bind: to recognize that leveling down is not always consistent with the meaning of equality as reflected in U.S. discrimination law.

The current approach to leveling down rests on two contestable understandings. First, leveling down implicitly relies on a principle of equal treatment as the exclusive meaning of equality without taking into account alternative understandings that would render leveling down problematic in certain settings. Second, leveling down proceeds from an abstracted and objectified analysis of equality that ignores the lived experience of inequality and implicitly privileges the perspective of those doing the abstracting. Current analysis of leveling down treats equality as if it were about balancing faceless pieces of clay on a scale with the single goal of arriving at equal weights in either direction. As much critical scholarship has shown, that kind of abstracted analysis often incorporates privileged norms that obscure the full extent of injuries to subordinated persons. (7) By injecting the lived experience of inequality back into the equation, leveling down is revealed as a questionable strategy that is sometimes used to preserve dominance contrary to the values of equality. …

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